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Show 416 LOSS OF WATER RIGHTS IN WATERCOURSES Appropriative-prescriptive rights.- Various decisions have dealt with appro- priative rights that have become prescriptive against downstream riparian owners. The right of one who appropriates water under the current laws governing acquisition of appropriative rights may be either senior or junior to other appropriative rights in the same source of supply, depending upon their respective priorities; but it will become superior to paramount riparian rights only after having, by reason of 5 years' adverse use and all other elements of prescription, become prescriptive with respect to them.830 As a result of the constitutional amendment of 1928,831 the California courts now hold that surplus or excess water above the reasonable beneficial requirements of riparian or overlying owners or prior appropriators may be appropriated without giving compensation, but that "an appropriative taking of water which is not surplus is wrongful and may ripen into a prescriptive right" under all the circumstances necessary to constitute prescription.832 Appropriative rights in nonsurplus waters that have thus become prescriptive are still appropriative rights. They differ from rights to the use of surplus waters in that the latter are solely appropriative, while the former are both appropriative and prescriptive. The taking of water on public lands for nonriparian purposes, under grant from the United States under the Act of 1866, was formerly considered by some California courts to be the only pure form of appropriation-appropria- tion under the Civil Code on private lands for use on private lands being "but another form of prescription" in that the original rights of the downstream riparian landowners could not be thereby divested until the period of prescription had run in favor of the appropriator.833 The term "appropriation" is now used in California, however, to refer to "any taking of water for other than riparian or overlying uses."834 The identity of certain appropriative rights with prescriptive rights has been recognized in numerous California court decisions. From the recognition of this identity it followed that the principle of "first in time, first in right" imposed upon appropriators in the Civil Code applied to appropriative- 830 Most California law with respect to conflicting riparian-appropriation interrelationships was made in controversies in which the riparian right was adjudged superior. Regarding differences, as against appropriative rights, that may arise due to the time that lands passed into private ownership, and related factors, see, in chapter 6, "Interrelationships of the Dual Water Rights Systems-The Status in Summary: By States-California." 831 Cal. Const, art. XIV, § 3. ^Pasadena v. Alhambra, 33 Cal. (2d) 908, 925-927, 207 Pac. (2d) 17 (1949). "As to the exported water it is clear that the rights of appellant could not be overlying in character and must be either appropriative or prescriptive or an aggregation of the two." AIpaugh In. Dist. v. County of Kern, 113 Cal. App. (2d) 286, 292-293, 248 Pac. (2d) 117 (1952). , 833San Bernardino v. Riverside, 186 Cal. 7, 13-14, 198 Pac. 784 (1921). See chapter 7 at notes 166-167. 834Pasadena v. Alhambra, 33 Cal. (2d) 908, 925, 207 Pac. (2d) 17 (1949). |
